"service in his Majesty's forces by sea or land, then by such in"formation on oath as aforesaid, or by information to his commanding officer." The statute 52 Geo. 3. c. 104. s. 2. contains a similar enactment as to the oaths or engagements within that act, except that the words "fourteen days" are substituted for "four days." By the fifth section of the 37 Geo. 3. any engagement or obliga- What shall tion whatsoever in the nature of an oath, and by the sixth section be deemed of the 52 Geo. 3. any engagement or obligation whatsoever in the an oath, nature of an oath purporting or intending to bind the person taking the same to commit any treason or murder or any felony punishable by law with death, shall be deemed an oath within the intent and meaning of those acts, in whatever form or manner the same shall be administered or taken; and whether the same shall be actually administered by any person or persons to any other person or persons, or taken by any person or persons without any administration thereof by any other person or persons. are to be With respect to persons aiding and assisting at the adminis- Persons aiding tering or taking these unlawful oaths, the third section of the 37 and assisting Geo. 3. enacts, that persons aiding and assisting at, or present deemed prinand consenting to, the administering or taking of any oath or cipals. engagement before mentioned in that act; and persons causing any such oath or engagement to be administered or taken, though not present at the administering or taking thereof, shall be deemed principal offenders, and tried as such; although the person or persons who actually administered such oath or engagement, if any such there shall be, shall not have been tried or convicted. A similar enactment is contained in the fourth section of the 52 Geo. 3. with respect to persons aiding and assisting at the administering of any oath or engagement mentioned in that act; and persons causing any such oath or engagement to be administered, though not present at the administering thereof: such persons are to be deemed principal offenders, and, on conviction, to be adjudged guilty of felony, and to suffer death without benefit of clergy, although the person or persons who actually administered the oath or engagement, if any such there shall be, shall not have been tried or convicted. In the indictment it is sufforth the pur ficient to set Both the statutes provide that it shall not be necessary to set forth in the indictment the words of the oath or engagement; and that it shall be sufficient to set forth the purport of such oath or engagement, or some material part thereof. (c) Upon an indict- port of the ment on the 37th Geo. 3. the fourth count charged, that the oath or endefendants administered to J. H. an oath "intended to bind him gagement. "not to inform or give evidence against any member of a certain "society formed to disturb the public peace for any act or expres"sion of his or their's, done or made collectively or individually "in or out of that or other similar societies, in pursuance of the "spirit of that obligation ;" and the eighth count stated the oath to be" intended to bind the said J. H. not to give evidence against any "associate in certain associations and societies of persons formed "for seditious purposes:" and the other counts stated the objects of the oath administered, and the objects of the society, differently (c) 37 Geo. 3. c. 123. s. 4. 52 Geo. 3. c. 104. s. 5. Evidence.- cessary to pro- from which it is supposed that the oath was read. And parole evidence may be given to explain the nature of the oath. Place of trial. Persons tried not liable to be tried for the same fact as high trea son. and more generally, adapted to several prohibitory parts of the statute. Upon objection taken at the trial to the generality of the statements in the indictment, Lord Alvanley was of opinion, that the act intended that it should be sufficient to allege and prove what the object of the oath and engagement was, without stating any words at all; and that the offence being described in the words of the act, was well described: but that supposing the objection made to the generality of the counts was good, which he did not admit, yet that in the fourth and eighth a material part of the oath or engagement was set forth according to the clause of the act. The point was submitted to the Judges, who, without giving any opinion against the other counts, all agreed that at any rate the fourth and eighth counts were good. (d) Where the witness, swearing to the words spoken by way of oath by the prisoner when he administered it, said that he held a paper in his hand at the time when he administered the oath, from which paper it was supposed that he read the words; it was held, that parole evidence of what he in fact said was sufficient, without giving him notice to produce such paper. (e) And where the oath on the face of it did not purport to be for a seditious purpose, though it was objected that no parole evidence could be given to shew that the "brotherhood" mentioned in it was of a seditious nature, it was held that declarations made at the time by the party administering such an oath were admissible to prove the real object of it. (ƒ) Both the statutes, 37 Geo. 3. and 52 Geo. 3. provide, that offences committed on the high seas, or out of the realm, or in England, shall be tried before any court of oyer and terminer or gaol delivery for any county in England in such manner and form as if such offence had been therein committed; and that offences committed in Scotland shall be tried either before the justiciary court at Edinburgh, or in any of the circuit courts in that part of the united kingdom. (g) It is also provided by both these statutes that any person who shall be tried and acquitted or convicted of any offence against the acts, shall not be liable to be prosecuted again for the same offence or fact as high treason, or misprision of high treason. And further, that nothing in the acts contained shall be construed to extend to prevent any person guilty of any offence against the acts, and who shall not be tried for the same as an offence against the acts, from tried for high being tried for the same as high treason, or misprision of high treason, if not treason, in such manner as if those acts had not been made. (h) But persons offending against these acts may be tried under c. 19. s. 25. Societies tak ing unlawful oaths, &c. to be deemed unlawful combinations and confederacies. By a statute, very recently passed, the 57th Geo. 3. c. 19. s. 25. it is enacted, that all societies or clubs, the members whereof shall be required or admitted to take any oath or engagement, which shall be an unlawful engagement within the 37th Geo. 3. c. 123. or the 52d Geo. 3. c. 104. or to take any oath not required or autho (f) Id. Ibid. (g) 37 Geo. 3. c. 123. s. 6. 52 Geo. 3. c. 104. s. 7. (d) Rex v. Moors and Others, 6 East. 421. (h) 37 Geo. 3. c. 123. s. 7. 52 Geo. 3. c. 104. s. 8. rized by law; and every society or club, the members whereof, or any of them, shall take, or in any manner bind themselves by any such oath or engagement on becoming, or in order to become, or in consequence of being a member or members of such society or club; and every society or club, the members or any member whereof shall be required or admitted to take, subscribe, or assent to any test or declaration not required or authorized by law, in whatever manner or form such taking or assenting shall be performed, whether by words, signs, or otherwise, either on becoming, or in order to become, or in consequence of being a member or members of any such society or club; shall be deemed and taken to be unlawful combinations and confederacies within the meaning of the 39th Geo. 3. c. 79. and may be prosecuted, proceeded against, and punished, according to the provisions of the said act. (i) unlawful oaths for life. With respect to the administering or taking unlawful oaths in Administering Ireland, a late statute, 50 Geo. 3. c. 102., has enacted, "that any in Ireland person or persons who shall administer, or cause to be adminis- felony and ❝tered, tender, or cause to be tendered, or be present aiding and transportation "assisting at the administering or tendering, or who shall by "threats, promises, persuasions, or other undue means, cause, procure, or induce to be taken by any person or persons in “Ireland, upon a book or otherwise, any oath or engagement importing to bind the person or persons taking the same to be of "any association, brotherhood, committee, society, or confederacy whatsoever, in reality formed, or to be formed, for seditious purposes, or to disturb the public peace, or to injure the persons or property of any person or persons whatsoever, or to compel any "person or persons whatsoever, to do, or omit, or refuse to do, any "act or acts whatsoever, under whatever name, description, or pretence, such association, brotherhood, committee, society, or "confederacy, shall assume, or pretend to be formed or constituted, " or any oath or engagement importing to bind the person taking "the same to obey the orders, or rules, or commands, of any com"mittee or other body of men not lawfully constituted, or of any "captain, leader or commander, (not appointed by or under the authority of his Majesty, his heirs and successors,) or to assemble "at the desire and command of any such captain, leader, com"mander, or committee, or of any person or persons not having "lawful authority, or not to inform or give evidence against any "brother, associate, confederate, or other person, or not to reveal "or discover his or her having taken any illegal oath, or not to "reveal or discover any illegal act done or to be done, or not to "discover any illegal oath or engagement which may be adminis"tered or tendered to him or her, or the import thereof, whether "such oath shall be afterwards so administered or tendered, or "not, or whether he or she shall take such oath, or enter into "such engagement or not, being by due course of law convicted (i) This statute is not to extend to Freemasons' lodges, nor to any declaration approved by two justices, nor to Quakers' meetings, nor to meetings or societies for charitable purposes. S. 26. By s. 39. the act is not to extend And taking such oath in portation for seven years. Persons com. cessity are ex "thereof, shall be adjudged guilty of felony, and be transported "for life; and every person who shall take, in Ireland, any such "oath or engagement, importing so to bind him or her as aforesaid, Ireland, trans-" and being by due course of law thereof convicted, shall be adjudged guilty of felony, and be transported for seven years." This statute further enacts, that a person compelled by inevitable pelled by ne- necessity to commit any of these offences, shall be excused and cused if they justified upon proof of such necessity, if within ten days (not being disclose what prevented by actual force or sickness, and then within seven days they know in a after such actual force or sickness shall cease to disable him,) he disclose to a justice of peace, by information on oath, the whole of what he knows touching his compulsion. (k) Persons aiding at deemed prin- the administering or tendering the oath or engagement, and persons causing the oath or engagement to be administered or tendered, though not present, are to be deemed principal offenders, and tried as such, though the person who actually administered such oath or engagement shall not have been tried or convicted. (4) And the statute also provides, that it shall be sufficient to set forth in the indictment the purport or object of such oath or engagement. (m) limited time. Aiders to be cipal offenders. Purport of the oath sufficient in the indictment. By the 4 Geo. 4. c. 87. s. 1. every society, &c. in Ireland, the members whereof shall, according to the rules, &c. be required or admitted, or permitted to take any oath or engagement, which shall be an unlawful oath or engagement, within the statute 50 Geo. 3. c. 102. or to take any oath not required or authorized by law, are declared to be unlawful combinations and confederacies. (k) S. 2. And the section provides also, that no person shall be excluded from the defence of inevitable necessity, who shall be tried for an offence within ten days from the commission of it, or of seven days from the time CHAPTER THE THIRTEENTH. OF MISPRISION OF FELONY, AND OF COMPOUNDING OFFENCES. of felony. By misprision of felony, is generally understood the concealment Of misprision of felony, or a procuring such concealment, whether it be felony orconcealment by the common law or by statute. (a) Thus, silently to observe the commission of a felony without using any endeavour to apprehend the offender, is a misprision; (b) for a man is bound to discover the crime of another to a magistrate with all possible expedition. (c) But there must be knowledge merely without any assent; for if a man assent to a felony, he will be either principal or accessory. (d) The punishment of this offence in an officer is imposed by the statute of Westminster, 3 Edw. 1. c. 9. which enacts, that "if the sheriff, coroner, or any other bailiff within a "franchise, or without, for reward, or for prayer, or for fear, or "for any manner of affinity, conceal, consent, or procure to conceal, the felonies done in their liberties; or otherwise will not "attach nor arrest such felons (there as they may), or otherwise "will not do their office, for favour borne to such misdoers, and be "attainted thereof, they shall have one year's imprisonment, and "after make a grievous fine at the king's pleasure, if they have "wherewith; and if they have not whereof, they shall have impri"sonment of three years." The punishment, in the case of a common person, is imprisonment for a less discretionary time; and in both cases fine and ransom at the king's pleasure. (e) By the 3 Hen. 7. c. 1. the justices of every shire may take an inquest to inquire of the concealments of other inquests, of such matters and offences as are to be inquired and presented before justices of the peace, whereof complaint shall be made by bill; and if such concealment be found of any inquest within a year after the concealment, every person of the inquest is to be amerced for the concealment by discretion of the justices. Of a similar nature to this offence of misprision of felony, is the offence of compounding of felony, mentioned in the books by the of compounding of felony or theft-bote. |